On March 23, the U.S. Supreme Court held in Kahler v. Kansas that Kansas could effectively abolish its insanity defense without violating due process. The ruling rested in part on the availability of a mens rea alternative to insanity in Kansas, allowing a defendant to introduce evidence of psychiatric impairment to negate the required mens rea (or criminal intent) for the charged offense. This alternative offers mentally ill defendants in a handful of states a relatively narrow version of insanity. Only if a mental disorder deprives a defendant of the capacity to harbor the requisite intent in connection with the charged offense can he qualify for acquittal. Traditionally, the defense would also cover cases in which the government could prove all elements of the crime, including mens rea. The move to what we might call the abolished version of the insanity defense exposes a hostility that many have long felt toward the idea of excusing defendants on insanity grounds. Further evidencing that hostility are some of the questions posed by the justices during argument. For two excellent responses to judicial queries, check out this page on the recently released Oral Argument 2.0.
An Exception to the Rule
The summer after my second year of law school, I worked at Debevoise & Plimpton. One of the draws of the firm (apart from the unreal salary and friendly attorneys) was the opportunity to spend a few weeks at a pro bono assignment. I chose to work at the Mental Hygiene Legal Service located within the walls of the Kirby Forensic Psychiatric Center on Ward’s Island in New York. The facility houses the criminally insane, including people found not guilty of their crimes by reason of insanity and patients confined as mentally ill and dangerous. One of the inmates at the time was Juan J. Gonzalez, a man who had boarded the Staten Island Ferry with a sword one day and attacked eleven passengers, killing two and injuring the others. Gonzalez received a diagnosis of schizophrenia, and a jury later found him not guilty by reason of insanity (NGRI).
Prior to his violence on the Ferry, Gonzalez reportedly appeared at the Presbyterian Hospital emergency room complaining of hearing voices telling him to kill. The hospital evaluated him for two days and released him, allegedly because there were no psychiatric beds. The New York City Commissioner of Mental Health, Mental Retardation [sic] and Alcoholism Services said there were some indications that Gonzalez’s homelessness and lack of any money might have played a role in what she determined was his premature release. There are competing reports about how Gonzalez made his way to the hospital, but I have shared the version I heard during the summer I met him, holding that he chose to admit himself. If that version is correct, it could help explain why a jury was willing to find him NGRI.
What made Gonzalez sympathetic, I believe, was that it was possible to imagine him as a person separate from his illness. He had acted in a responsible and even altruistic way. How many people would try to have themselves civilly confined in a hospital to ensure the safety of others? If there is a villain here, it might be the hospital that refused him a bed. Most defendants who plead insanity may be very different from Juan Gonzalez. Their criminal conduct does not appear as the product of an outside force that takes over an otherwise good and decent person. It instead seems to come organically from who they are.
The Rule
A typical insanity defense would require the defendant to prove that he (1) did not understand right from wrong or the difference between them, (2) did not understand what he did, or (3) lacked control over his actions. Different problems beset each of these options. Beginning with the last, people may doubt that someone with a mental disorder lacks control over his actions. It is one thing to have involuntary spasms that fail the act (actus reus) requirement, and it is quite another to feel a compulsion to do something that allegedly robs an individual of free will. If a murderer felt the kind of compulsion (temptation) that we feel when we pass a bakery and smell the warm pastries, we might have little sympathy for his predicament. I suspect many think of such situations (on the addiction spectrum) as exemplifying the insane person’s supposed lack of control. Understanding right from wrong gives rise to very different problems.
What does it mean not to understand the difference between right and wrong? Moral propositions are different from factual statements about the world. Your mental illness might impede your ability to understand that the person running toward you is a human rather than a deranged robot. But if you feel no revulsion at the prospect of killing an innocent human, then your shortcoming will seem to many characterological rather than pathological. There is no decent person underneath it all who suffers from an illness. There is instead an evil person who wants to be able to commit and then get away with immoral acts by invoking a mental disease or defect.
Contrast a somewhat similar case that would likely garner a great deal of sympathy. John Doe is a kind and friendly man, thirty years of age. Then one day, a machine at John’s workplace malfunctions and spits out large metal projectiles, one of which slams into and penetrates Doe’s skull and brain and causes him to lose consciousness. When doctors surgically remove the projectile, Doe’s personality undergoes a radical change. He is now a pathological liar and a sadist. He spends most of his time plotting ways to crush his competition in each sphere of life. Though his co-workers, over time, might grow to hate him, they will also acknowledge that his current personality must result from brain damage caused by the work accident. “That isn’t him,” people might say (in place of “that isn’t he”). It is the metal rod that penetrated his brain.”
A patient with a personality disorder such as narcissism might have many of the same traits as John Doe has after his accident. By contrast to Doe, however, they have probably had the traits for all of their adult lives. Though their personality disorder may come with the very brain abnormalities that one might see in John Doe, it “feels” to people more like this is just what the disordered person is. Excuses like insanity feel most comfortable in the hands of people whose good personality, whose capacity for kindness, were evident before the brain damage that altered them. I believe most people would say that to be born with an “evil” brain is to be evil. Evil people generally understand that what they enjoy doing falls into society’s “wrongful conduct” category. They know to hide their dark sides from new people who might otherwise interfere with their misconduct. This knowledge exposes their ability to distinguish what ordinary people call right from wrong. Disordered individuals, however, may not find that difference compelling. It does not speak to them in the way it does to normal people. And disordered individuals probably cannot, in most cases, remember a time when things were different.
Entrapment Analogy
One of my students, Paula Coelho, is writing a fascinating paper for a course she is taking with my colleague, Stephen P. Garvey, called “Guilty Acts, Guilty Minds.” In the paper, entitled The Provocation Defense and The Myth of a Peaceful Killer, Paula proposes a narrowing of the homicide category that downgrades murder to manslaughter when the defendant killed the victim while in the grip of a provocation-induced loss of control. Among other things, Paula suggests that to take advantage of the provocation downgrade, a defendant should have to show he has been consistently peaceful up until the point that he lost control due to whatever provoked him to take his victim’s life. Paula draws an analogy between provocation homicide and entrapment, proposing that if a defendant has a predisposition for violent conduct, then we ought to attribute the murder to that predisposition and not to the external provocation. In the same way, a criminal defendant will fail at establishing the entrapment defense against the government if he manifested a prior inclination towards the conduct that the government induced.
Paula’s analogy to entrapment is very insightful. I have always explained entrapment as a defense that has more to do with disciplining the government for inducing people to commit crimes than it does with recognizing the defendant’s true culpability. But Paula has persuaded me that the entrapment defense quite consciously distinguishes between defendants who are generally good people (where government induction amounts to entrapment) and defendants who have exhibited bad character (where the same government induction fails to establish entrapment). It is the defendant who never did anything like this before who gets to blame his misconduct on the government’s provocation. Something external then looks responsible for the behavior. And the same is true in the insanity defense.
To my knowledge, no state has an insanity defense that requires a defendant to show that prior to the illness, he was a gentle person who never committed any crime. But I suspect that this is the sort of person that the jury wants to find NGRI. If the mental illness looks like an outside force that without warning attacked the defendant and made him behave in an out-of-character fashion, then he will seem properly “insane” to juries. Juan J. Gonzalez qualified under that criterion and therefore was able to persuade a jury to find him NGRI. But beyond him and others like him, people see someone with a mental disorder he has had for most or all of his life and conduct that fails to depart from his ordinary way of being in the world, and they are unwilling to say that his behavior originated in the disorder rather than in him. For most who suffer from a mental disorder, the person and the illness look indivisible, and both can expect to reach the end of their trial with a guilty verdict, however debilitating the illness. If the defendant understood what he did (i.e., did not mistake a person for a birthday cake), then he will go to prison. Even the liberals on the Court seem to have no appetite for saying otherwise.